Porter v. State, No. 179S33

Docket NºNo. 179S33
Citation397 N.E.2d 269, 272 Ind. 267
Case DateDecember 07, 1979
CourtSupreme Court of Indiana

Page 269

397 N.E.2d 269
272 Ind. 267
James S. PORTER, Appellant,
v.
STATE of Indiana, Appellee.
No. 179S33.
Supreme Court of Indiana.
Dec. 7, 1979.

Page 270

Melvin Reed and R. W. Chamblee, Jr., Lark, Reed & Chamblee, P. C., South Bend, for appellant.

Theo. L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., for appellee.

PIVARNIK, Justice.

Defendant-appellant James S. Porter was charged with rape, Ind.Code § 35-13-4-3 (Burns 1975), in Elkhart Superior Court No. I. He was found guilty as charged by a jury on July 12, 1978, and was sentenced by the court on August 10, 1978, to a term of eighteen years. Appellant raises two issues for our consideration: (1) whether the trial [272 Ind. 268] court erred in permitting the victim's testimony concerning out-of-court identifications of the appellant-defendant, in spite of the use of impermissibly suggestive identification procedures; and (2) whether the trial court erred in admitting evidence of another crime committed by appellant for the purpose of demonstrating identity or a common scheme or plan.

On the night of May 2, 1977, G. H. awoke when she heard someone in in her apartment. She observed a black man in her room who brandished a knife and ordered her not to move. The man then removed his trousers, forcibly removed G. H.'s panties, and penetrated her before she was able to break away from him. The assailant cut her with the knife several times and threw a plant stand at her during the incident. She ran to a window, threw it open, and screamed for help, whereupon her attacker left.

G. H. examined fifty to sixty photographs on two different occasions and identified appellant in one of those photographs. She later identified Porter in a corporeal line-up. She also made a positive identification of the defendant as her assailant at trial.

Page 271

I.

Appellant contends the pre-trial identification procedures used by the police were impermissibly suggestive and that the victim, G. H., did not have a sufficient independent basis to make an in-court identification. We have discussed this issue on may occasions. A determination of whether the pre-trial identification procedure is impermissibly suggestive and renders the testimony relating to the identification inadmissible depends upon a consideration of the totality of circumstances. Deaton v. State, (1979) Ind., 389 N.E.2d 293, 299; Pierce v. State, (1977) 267 Ind. 240, 246, 369 N.E.2d 617, 620; Gaddis v. State, (1977) 267 Ind. 100, 107, 368 N.E.2d 244, 249.

The evidence here shows that following the victim's description of her assailant, the police showed her fifty to sixty photographs of black males. On the day following her attack, she looked at a large number of photographs. She stated that one of them looked somewhat like her attacker, but that she could not say for sure. His photograph was not one of the defendant. A few days later, G. H. was asked by the police to examine more photographs. This display consisted of three or four [272 Ind. 269] additional photographs. The police asked her to look at these photographs, but did not indicate their opinion as to whether the assailant's photograph was among them. Upon examining these photographs, G. H. immediately selected the defendant's picture.

Appellant argues that the display of only three or four photographs on the second showing tended to give the impression to the victim that the police believed the attacker's picture was in this group. It does not appear that this was the outcome here. The victim examined a large number of photographs and said she could not find her attacker except for a possibility that one photograph could be him because some of his features were present. On a second viewing, however, with no encouragement from the police, she positively identified the defendant and testified that there was no question in her mind when she saw the defendant's photograph that this was the man. There was nothing impermissibly...

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26 practice notes
  • Norton v. State, No. 377S185
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1980
    ...Page 525 Norton and the crimes with which he was charged here, and therefore was properly admitted. Porter v. State, (1979) Ind., 397 N.E.2d 269, 272; Grooms v. State, Appellant next claims the trial court erroneously permitted the prosecutor to ask a defense witness about appellant Norton'......
  • Mitchell v. State, No. 57746
    • United States
    • United States State Supreme Court of Mississippi
    • February 27, 1989
    ...den. 421 U.S. 1012, 95 S.Ct. 2417, 44 L.Ed.2d 680, not following Meeks v. State, 249 Ind. 659, 234 N.E.2d 629 (1968); Porter v. State, 272 Ind. 267, 397 N.E.2d 269 (1979); People v. Clark, 62 Mich.App. 740, 233 N.W.2d 856 (1975); State v. Gatlin, 295 N.W.2d 538 (Minn.1980); State v. Reinke,......
  • Derouen v. State, No. 2007-KA-01005-SCT.
    • United States
    • Mississippi Supreme Court
    • November 20, 2008
    ...den. 421 U.S. 1012, 95 S.Ct. 2417, 44 L.Ed.2d 680, not following Meeks v. State, 249 Ind. 659, 234 N.E.2d 629 (1968); Porter v. State, 272 Ind. 267, 397 N.E.2d 269 (1979); People v. Clark, 62 Mich.App. 740, 233 N.W.2d 856 (1975); State v. Gatlin, 295 N.W.2d 538 (Minn.1980); State v. Reinke,......
  • Short v. State, No. 381S86
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1982
    ...although it is not charged. See, e.g., Armstrong, supra; Parker v. State, (1981) Ind., 425 N.E.2d 628; Porter v. State, (1979) Ind., 397 N.E.2d 269. Evidence the accused tried to avoid arrest is relevant and admissible as circumstantial evidence of guilt. Porter v. State, (1979) Ind., 391 N......
  • Request a trial to view additional results
26 cases
  • Norton v. State, No. 377S185
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1980
    ...Page 525 Norton and the crimes with which he was charged here, and therefore was properly admitted. Porter v. State, (1979) Ind., 397 N.E.2d 269, 272; Grooms v. State, Appellant next claims the trial court erroneously permitted the prosecutor to ask a defense witness about appellant Norton'......
  • Mitchell v. State, No. 57746
    • United States
    • United States State Supreme Court of Mississippi
    • February 27, 1989
    ...den. 421 U.S. 1012, 95 S.Ct. 2417, 44 L.Ed.2d 680, not following Meeks v. State, 249 Ind. 659, 234 N.E.2d 629 (1968); Porter v. State, 272 Ind. 267, 397 N.E.2d 269 (1979); People v. Clark, 62 Mich.App. 740, 233 N.W.2d 856 (1975); State v. Gatlin, 295 N.W.2d 538 (Minn.1980); State v. Reinke,......
  • Derouen v. State, No. 2007-KA-01005-SCT.
    • United States
    • Mississippi Supreme Court
    • November 20, 2008
    ...den. 421 U.S. 1012, 95 S.Ct. 2417, 44 L.Ed.2d 680, not following Meeks v. State, 249 Ind. 659, 234 N.E.2d 629 (1968); Porter v. State, 272 Ind. 267, 397 N.E.2d 269 (1979); People v. Clark, 62 Mich.App. 740, 233 N.W.2d 856 (1975); State v. Gatlin, 295 N.W.2d 538 (Minn.1980); State v. Reinke,......
  • Short v. State, No. 381S86
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1982
    ...although it is not charged. See, e.g., Armstrong, supra; Parker v. State, (1981) Ind., 425 N.E.2d 628; Porter v. State, (1979) Ind., 397 N.E.2d 269. Evidence the accused tried to avoid arrest is relevant and admissible as circumstantial evidence of guilt. Porter v. State, (1979) Ind., 391 N......
  • Request a trial to view additional results

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